People v. Mirque

Howard Getz for defendant. Robert T. Johnson, District Attorney (Juan Pucha of counsel), for plaintiff.

OPINION OF THE COURT

ETHAN GREENBERG, J. The emergency medical technicians of New York City's Emergency Medical Service perform crucial and sometimes heroic work. Typically, an emergency medical technician (or EMT) is the first medical professional to assist a person who has fallen victim to sudden illness or serious accident. It is no exaggeration to say that an EMT often makes the difference between life and death. Part of the EMT's job is to talk to the patient, to gather information from the patient, and to report that information to the nurses and doctors at the hospital for their use in further treating the patient. The EMT's ability to get full and truthful information from the patient can be especially important in those cases where the patient loses consciousness before reaching the hospital. Such a patient cannot speak for himself to the hospital staff. Rather, both the patient and the hospital staff responsible for his life and health must rely upon the EMT's report. In view of these considerations, and for the reasons detailed below, the court finds that under appropriate circumstances communications between patients and EMT's are subject to the health care professional's privilege created by CPLR 4504.

Facts

Just before 4:00 A.M. on April 21, 2001, the defendant Charles Mirque was involved in a serious car accident. His Jeep collided with a car driven by Irving Maynard. The Jeep slammed into a pillar supporting an elevated train track. Defendant's nephew was a passenger in defendant's Jeep. The nephew was knocked unconscious and pinned inside the Jeep. The fire department ultimately extracted the nephew from the Jeep using the "jaws of life." Defendant Mirque was luckier. He suffered less serious injuries, the worst being a gash on his forehead. EMT Elizabeth Sturdivant (along with a partner) removed defendant from his Jeep, placed him on a stretcher, immobilized his head and neck with a cervical "collar," and transported defendant by ambulance from the scene to a hospital. While Ms. Sturdivant was loading the defendant into the ambulance, she noticed a strong odor of alcohol on his breath. One of her duties as an EMT for New York City's Emergency Medical Service (EMS) was to fill out a standardized ambulance call report. That report summarizes the information gathered by the EMT concerning the patient's medical condition. The EMT is required to give the completed report to After consideration, the court granted the motion for the reasons more fully explained below. The court held that EMT Sturdivant would be permitted to testify as to her observations of the defendant's condition—including the strong smell of alcohol on his breath—but not as to her discussion with the defendant about his drinking. Defendant subsequently waived his right to a jury trial. After a bench trial defendant was found guilty of a single count of driving while impaired (Vehicle and Traffic Law § 1192 [1]).

Law The Health Care Professional's Privilege

CPLR 4504 codifies what is sometimes referred to as the health care professional's privilege. (See M. Martin, New York Evidence Handbook § 503 [2d ed 2002].) The statute provides in relevant part:

"(a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry, or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity."

The physician-patient and related health care professional's privilege embodied in CPLR 4504 is designed to encourage candor between patient and physician so that proper care can be given, to make it unnecessary for a physician to choose between the duty to honor a patient's confidences and the duty to give evidence in court, and to protect a patient's privacy. (Dillenbeck v Hess, 73 NY2d 278, 285-286 [1989].) The privilege should be given a broad and liberal construction in order to carry out these purposes. (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130, 134 [1983]; People v Decina, 2 NY2d 133, 143 [1956].) CPLR 4504 does not include emergency medical technicians or paramedics within its list of the health care professionals who are expressly covered by the privilege. Moreover, the statute by its terms does not extend the privilege to people who work for or with covered professionals. By way of contrast, CPLR 4503—which codifies the attorney-client privilege— expressly includes an attorney "or his employee" within that privilege. Thus there is a strong argument to be made that EMT's are not covered by CPLR 4504. Hanf because the statement at issue was made not by the patient to the EMT, but was instead made by her husband, the defendant, who had killed his wife and then waited at the scene and talked to the EMT. The decision in People v Ackerson (149 Misc 2d 882 [Monroe County Ct 1991]) points in the opposite direction. The County Court there recognized that where an EMT acts as an agent for a doctor, the CPLR 4504 privilege applies. But the Ackerson court further found that in the ordinary case the privilege should not apply to an EMT because, according to that court:

"[T]he physician and the emergency medical technician serve complementary but completely different functions * * * In the absence of acting as an agent for a physician, not the case here, the emergency medical technician is not charged with the responsibility for gathering information for diagnosis and/or treatment of illness or injury, but only with the job of preventing further illness or injury through well-learned, sophisticated and thoughtful first aid." ( 149 Misc 2d at 884-885.)

Analysis

The question presented is whether defendant Mirque's statements to EMT Sturdivant about his drinking are privileged pursuant to CPLR 4504 and should therefore be excluded at trial. The broader issue raised is whether and under what circumstances statements made by a patient to an EMT or paramedic should be covered by the section 4504 privilege. The issue is admittedly a close one. As the conflicting opinions in Hanf and Ackerson illustrate, this case falls into that small category of cases that "might be decided either way" in that "reasons plausible and fairly persuasive might be found for one conclusion as another"; the case thus calls upon the court to exercise that "balancing of judgment, that testing and sorting of considerations of analogy and logic and duty and fairness" that lie at the heart of the judicial process. (B. Cardozo, The Nature of the Judicial Process, at 164-165 [1921].) The small body of prior case law concerning statements made to EMT's does not establish any clear rule. The approach of the courts in those prior cases has been to examine the nature of the relationship between the EMT and those professionals who are expressly covered by the statutory privilege, and then to ask whether the EMT falls within the scope of the privilege by virtue of that relationship. That approach is perfectly logical still time to speak—without worrying about such legal niceties. The concerns and calculations of a litigious world have already intruded too far into the sphere of medicine. A patient bound for the hospital by ambulance should not be required to master the rules of agency before speaking freely. For these reasons, the court holds that where, as here, an EMT speaks to a patient and obtains medical information and then reports that information to the hospital's medical staff, the statutory privilege of CPLR 4504 applies. Accordingly, the proposed testimony of EMT Sturdivant that defendant Mirque made admissions to her concerning his drinking was excluded at trial.

Conclusion The motion in limine is granted. [1] According to EMT Sturdivant's testimony, an EMT can splint fractures, dress wounds, perform CPR and immobilize a patient, but is not permitted to administer medication. [2] It should be noted that the very same reasons that support the rule adopted by the court herein also suggest certain limitations on that rule. Most important, there are of course many cases involving minor injuries or illness where an EMT simply treats the patient at the scene and does not need to take the patient to the hospital or to communicate with the hospital about the patient. In such a situation, the argument for privilege on the theory that the EMT acts as agent for or assistant to the hospital's medical staff would be much weaker. But that is a case for another day.